Tobias Partners Pty Ltd v Waverley Council
[2024] NSWLEC 1529
•28 August 2024
Land and Environment Court
New South Wales
Medium Neutral Citation: Tobias Partners Pty Ltd v Waverley Council [2024] NSWLEC 1529 Hearing dates: Conciliation Conference on 1 August 2024 Date of orders: 28 August 2024 Decision date: 28 August 2024 Jurisdiction: Class 1 Before: Macken AC Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application No DA-534/2022 is determined by the grant of consent, subject to the conditions set out at Annexure A.
Catchwords: DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7
Land and Environment Court Act 1979, ss 34, 34AA
Environmental Planning and Assessment Regulation 2021
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 4.2
State Environmental Planning Policy (Sustainable Buildings) 2022
Waverley Local Environmental Plan 2012, cll 2.7, 4.3, 4.4, 6.1, 6.2
Category: Principal judgment Parties: Tobias Partners Pty Ltd (ACN 113 571 743) (First Applicant)
Trondheim Services Pty Ltd (ACN 640 737 373) (Second Applicant)
Waverley Council (Respondent)Representation: Counsel:
Solicitors:
A Smith (Applicant)
J Ede (Solicitor) (Respondent)
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2023/00459403 Publication restriction: Nil
Judgment
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COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA-534/2022 for demolition and construction of a new part two and part three storey dwelling with integrated basement garage and swimming pool (the Proposal) at 449 Bronte Road, Bronte (the Site) by Waverley Council (the Council).
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The subject site is steeply sloping, with a frontage to Bronte Road and a secondary rear frontage to Gardyne Street. It is occupied by a single storey dwelling, in an area predominantly characterised by large residential dwellings. To the east of the site, on the opposite site of Bronte Road, is Bronte Park with Bronte Beach below.
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Development Application No DA-534/2022 was lodged with Waverley Council, the Respondent in this matter, with consent of the owner of the land, and was notified between 6-27 January 2024.
Amended Plans
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Amended plans were provided to Council during the DA assessment period, and these amended plans were notified to adjoining residents between 22 June 2023 and 11 July 2023.
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The DA was refused by the Waverley Local Planning Panel on 23 August 2023.
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A Class 1 appeal against this refusal was filed in the Land and Environment Court under s 8.7 of the EPA Act by the Applicant on 19 December 2023.
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Further amended architectural plans were notified to residents between 15-29 July 2024.
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The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 August 2024. I presided over the conciliation conference, commencing with an onsite view, at which the Court, in the company of legal representatives, the Applicants and experts, heard oral submissions from residents.
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Following the onsite view, the Court facilitated conciliation discussions in accordance with s 34AA of the LEC Act. At the conciliation conference, on the basis of the amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
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A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 1 August 2024.
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The parties ask me to approve their decision as set out in the s 34 agreement before the Court. The agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final details of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
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Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
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The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [30].
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I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.
Jurisdictional matters
Planning Framework
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The site is located within the R2 Low Density Residential zone, pursuant to Waverley Local Environmental Plan 2012 (WLEP). The relevant objectives of the zone are:
To provide for the housing needs of the community within a low density residential environment.
To ensure dwelling character, landscape character, neighbourhood character, streetscapes and amenity are maintained or enhanced over time.
To promote development that incorporates planning and design measures that reduce the urban heat island effect.
To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.
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Demolition is permissible with consent in cl 2.7 of WLEP. The impacts of the demolition have been considered and are dealt with in the agreed conditions of consent.
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Development for the purposes of dwelling houses is permissible in zone R2.
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The proposal complies with the height of buildings development standard of 8.5m under cl 4.3 of the WLEP 2012.
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The proposal complies with the floor space ratio development standard of 0.52:1 under cl 4.4 of WLEP 2012.
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The impact of the proposed earthworks noted in cl 6.2 of WLEP 2012 are adequately addressed in the agreed conditions of consent, specifically: condition 11 (erosion & sediment control), condition 12 (details of excavation, shoring or pile construction), condition 13 (engineering details), condition 14 (stormwater management), and condition 15 (dilapidation report).
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The site is identified as being in an area of Class 5 Acid Sulphate Soils (ASS) on the relevant map at cl 6.1 of WLEP. However, as the maximum depth of excavation is not extending below 1m Australian Height Datum, I accept that an ASS is not required.
State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)
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On the basis that the site has been used as residential purposes for a substantial period of time, I accept that the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to cl 4.6 of the RH SEPP.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
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The application is accompanied by a BASIX certificate (1736900S_02 dated 26 July 2024), prepared by Efficient Living, in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP).
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The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and that the savings and transitional provisions at cl 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) have the effect of saving the amended DA from the provisions of the Sustainable Buildings SEPP.
State Environmental Planning Policy (Biodiversity and Conservation) 2021
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Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The trees proposed for removal are assessed as low value specimens in the Arboricultural Impact Assessment Report by Martin Peacock Tree Care, and the revised proposal incorporates landscaping areas and replacement planting to maintain tree canopy.
Conclusion
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I have considered the submissions made by the parties in the Jurisdictional Statement filed with the Court on 1 August 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.
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I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.
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In making the orders to give effect to the agreement between the parties, I was not required to, and have not made any merit assessment of the issues that were originally in dispute between the parties.
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The Court notes that:
The Respondent, Waverly Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA-534/2022 to rely on the documents as outlined below:
| Reference | Description | Author/Drawn | Date(s) |
| SWDA2.1, 2.4,2.5 and 2.6 SWCC2.2, 2.3 and 2.7 All Rev 1 | Stormwater Plans | Partridge | 19/03/2024 |
| BASIX Certificate No.1736900S_02 | BASIX Certificate and Nathers | Efficient Living | 26/07/2024 |
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The Applicant filed the above plans and documents listed, on 1 August 2024
Orders
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The orders of the Court are:
The appeal is upheld.
Development Application No DA-534/2022 (DA) seeking consent for the demolition of the existing dwelling and construction of a part two and part three storey single residential dwelling with integrated basement garage and swimming pool on land identified as Lot 31 in Deposited Plan 2232 located at 449 Bronte Road, Bronte is determined by the grant of consent subject to conditions contained in Annexure A.
Niall Macken
Acting Commissioner of the Court
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Annexure A
Decision last updated: 28 August 2024
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